Victor Rodarte v. Investeco Group, LLC. Morad Mekhail, Individually and as Trustee of Certain Real Property and Vincent Rodriguez

Affirmed and Majority and Concurring Opinions filed September 29, 2009.

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-08-00093-CV

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VICTOR RODARTE, Appellant

 

V.

 

INVESTECO GROUP, L.L.C.; MORAD MEKHAIL, INDIVIDUALLY AND AS TRUSTEE OF CERTAIN REAL PROPERTY DESCRIBED AS THE SOUTH ONE-HALF (2) OF LOT TWO (2) AND ALL OF LOTS THREE (3), FOUR (4), FIVE (5), AND SIX (6), IN BLOCK TWENTY-FOUR (24), IN MRS. A.C. ALLEN=S ADDITION TO THE CITY OF HOUSTON, HARRIS COUNTY, TEXAS NSBB, AND VINCENT RODRIGUEZ, Appellees

 

 

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2006-69640A

 

 

C O N C U R R I N G   O P I N I O N

I agree with the majority=s conclusion that Victor Rodarte has perfected appeal in his representative capacity; however, I respectfully disagree with the analysis the majority uses to reach this conclusion. 


In determining the capacity in which a party has asserted a claim in the trial court, the focus must be on the party=s pleadings.  Likewise, in determining the capacity in which a party has appealed from an adverse judgment, the focus must be on the party=s notice of appeal.  In both instances, this court must construe the operative language liberally. Under a liberal construction of the relevant trial court pleading, Victor Rodarte sued not just in his representative capacity, as the majority concludes, but also in his individual capacity.

In his live trial-court petition, Victor, as plaintiff, did not state that he was suing in his individual capacity or as representative of his brother Gregorio, or both.  Both Rodarte brothers (Victor and Gregorio) as well as Domingo Gonzales were named as plaintiffs; however, Victor=s capacity was not specified.  Rather, Victor was referred to as APlaintiff Victor Rodarte@ with no further explanation.  Though the terms APlaintiff@ and APlaintiffs@ are used throughout the petition, these terms are not defined.  Victor alleged in his trial court pleading (1) that he Ais the lawful agent of real-party-in-interest, Gregorio Rodarte, with respect to all suits arising from the real property in question,@ (2) that Gregorio Aexecuted special and general power of attorney agreements appointing Victor, as Gregorio=s agent with respect to the Property,@ and (3) that Athese power of attorney agreements vest Plaintiff [no specification] with full authority over Gregorio=s interest in the Property, including authority to prosecute any and all legal actions relating to the Property.@  Victor, however, did not state that he was bringing suit in his capacity as agent for Gregorio.  No party filed a motion requesting the trial court to compel Victor to show that he had capacity to assert claims in the litigation, nor did any party take any other action to place in issue Victor=s capacity to assert such claims.


Well-timed special exceptions to Victor=s trial-court pleading would have clarified the capacity issue.  However, because no special exceptions were filed or sustained against the petition, this court must construe the petition liberally to contain any claims that reasonably may be inferred from the language used in the petition.  SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354B55 (Tex. 1995).  Though the majority believes it is clear that Victor sued only on Gregorio=s behalf as Gregorio=s attorney-in-fact, under a liberal construction of the petition, Victor sued both in his individual capacity and in a representative capacity.        Appellees, relying on Elizondo v. Texas Natural Resources Conservation Commission, contend that Victor perfected appeal in his individual capacity only. See 974 S.W.2d 928 (Tex. App.CAustin 1998, no pet.).  They assert Victor lacks standing in this court because, in his individual capacity, he has no interest in the subject property.  See id.  However, in Elizondo, the plaintiff expressly stated in her trial-court petition that she was suing in both her individual capacity and in a representative capacity.  See id.  In contrast to the plaintiff in Elizondo, Victor did not expressly address in his trial-court pleading the capacity in which he brought suit.  Therefore, the Elizondo case is not on point.  See id


When Victor appealed the adverse judgment by filing a notice of appeal in this court, he continued to use the same vague terminology he used in his trial court pleading.  In his notice of appeal, Victor does not specify the capacity in which he is appealing.  Instead, Victor states only that the appellant is APlaintiff Victor Rodarte@ C the same vague term used in the trial court petition to refer to Victor suing in both an individual capacity and as representative of Gregorio.  The record reflects that Victor is relying heavily on his representative capacity, and there is no apparent basis upon which Victor could sue in his individual capacity.  In this context, the notice of appeal should be deemed sufficient to perfect an appeal by Victor in his representative capacity.  See Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Ins. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (holding that court of appeals should have reached the merits of insurance company=s appellate arguments and that insurance company had made a bona fide attempt to invoke the court of appeals= jurisdiction, even though notice of appeal did not mention the insurance company and referred only to the insurer/subrogor as the appellant).  Victor=s notice of appeal is not so deficient that it fails to invoke this court=s jurisdiction over the disputed claims.  Appellees argue that Victor lacks standing because he appealed only in his individual capacity; however, for the reasons stated above, this argument lacks merit.

 

 

 

/s/      Kem Thompson Frost

Justice

 

Panel consists of Justices Frost, Brown, and Boyce. (Brown, J., majority).